In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.
If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
***
1.) QUESTION: I am a U.S. citizen and my husband is in the U.S. illegally. I filed an I-130 and it was approved. It is my understanding the visa is available to him but my attorney advised me not to move forward with filing the Affidavit of Support or the DS-230 or go for the interview abroad. Why is this? The laws will not change for a longtime. Isn’t it better for my husband to go home and follow through with everything and appeal than to sit here in the U.S. and do nothing?
ANSWER: This is one of those tough questions that do not have a one-size-fits-all answer. I meet couples like this all the time, where the foreign national is married to a U.S. citizen, but because they entered the U.S. without inspection, and are not eligible to be grandfathered under the 245(i) “amnesty” or one of the other possible exceptions, they are not eligible to apply for a green card by filing for Adjustment of Status (Form I-485) in the U.S. Also, since the foreign national has been unlawfully present in the U.S. for more than 6 months, they would be subject to a 3 or 10 year bar of inadmissibility if they leave the U.S.
This is one of those situations where you absolutely need an experience immigration lawyer that you trust. This is because some couples are eligible to apply for a waiver of inadmissibility based upon extreme hardship to the foreign national’s U.S. citizen or Permanent Resident spouse or parent. But extreme hardship is more than just the usual hardship caused when a married couple is separated from each other. There has to be other factors there in order for an adjudicator to determine that there is extreme hardship. Examples of additional hardship that would be considered are health issues, financial considerations, loss of opportunity for education, personal considerations such as close relatives in the U.S. and age of the parties, and other factors such as cultural, religious and ethnic obstacles. These are just some examples and as there is no limit to the type of hardship that can be shown to explain how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or permanent resident relative. The point is that each couple needs to have their particular situation assessed for the possibility of showing extreme hardship by a competent attorney they trust. So it may be that your attorney does not feel you currently have a strong enough case for extreme hardship required for the waiver.
Also, if the foreign national has entered the U.S. without inspection more than once, or has entered the U.S. without inspection after having accrued one year or more of unlawful presence, or has entered the U.S. without inspection after being removed by the U.S. government, then it may be that the foreign national is permanently barred from receiving a visa to reenter the U.S. In such a case the I-601 or I601A waiver may not be available as an option.
These are all factors that need to be discussed with your attorney. If you are not sure that your attorney is giving you the best advice, or you feel that you have a stronger case for
hardship than your attorney says, then you always have the option to get a second opinion.
2.) QUESTION: My friend is about to apply for citizenship. He’s from Burma and only has one name. His green card says “no given name” then his last name. His social says “unknown” then his last name. His driver’s license says “nfn” what name should he use for the N-400 naturalization application?
ANSWER: Your friend should use their name as it is on their Birth Certificate. So if the Birth Certificate has something listed under the first name, such as “No First Name” or “FNU” (stands for First Name Unknown), then they should use that term on the application. Where the birth certificate does not list a first name, I do not believe there is a specific rule as to what to put in the space for the First Name on the Form N-400. Any one of the options you listed should be acceptable. It might be possible to leave that space blank, but that might result in a Request for Evidence from USCIS. Either way, when your friend is interviewed by USCIS, the adjudicating officer will have the opportunity to amend the application to another option, if there is a term/option that is preferred by USCIS. If your friend would like to have their name legally changed to give themselves a first name, they can do that as part of the naturalization process. But you should be aware that in some jurisdictions, asking for a name change can cause a delay in when the person is scheduled for the swearing-in ceremony to become a US citizen. So if having their name legally changed is something they are interested in doing, it might be easier for the person to go through the courts to have their name changed and then to apply for naturalization. Whatever they end up doing, the name that is listed on their naturalization certificate will be their legal name, so after they get their naturalization certificate, they should go to the Social Security Administration and their local DMV and have their names updated on their SS Card and Driver’s License so that they match their name as it is on their Naturalization Certificate.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.